1988 PLP 87 (SCMR)

NASIM HASAN SHAH, J.--In this appeal the question is whether while assessing the market value of the acquired land, the principles laid down by this Court in Nishat Sarhad Textile Mills Limited v . Sher Ahmad Khan and others P L D 1976 SC 531 and in Allah Bux Khudadad Gobal and others v. Collector of Karachi (Civil Appeals Nos. K-93 to K-95 of 1972), decided on 31-3-1980, were followed.

2. This Court had earlier granted leave to appeal in the case of Mst. Gunj Khatoon and others v. Province of Sind and another (Civil Appeal No. K-143 of 1980) wherein similar points were involved and, therefore, both the appeals have been heard together.

3. In our judgment of even date passed in Civil Appeal No. K-143 of 1980 we have held that the assessment of the market value of land, for purposes of compensation under the Land Acquisition Act, 1894, should not be made merely by references to the sales made in the locality around the time of the notification of acquisition under section 4 of the Land Acquisition Act, 1894 (hereinafter called the Act) but that the advantage enjoyed by the land in question on account of its peculiar situation and the potential of the land must also be taken into account.

4. In the instant case, the Land Acquisition Collector had assessed the value of the acquired land by taking the average rate of the sales which had been taken place in the locality during 6/7 years period prior to the date of the notification of acquisition but on reference under section 18 of the Act, this approach was not approved by the learned Single Judge, who heard the reference. He considered that the sales made 7 years or even 3/4 years prior to the date of the notification under section 4 were too old to furnish reliable guidance in the matter and instead relied upon a sale transaction which had taken place 11 months after the date of the acquisition notification and observed that this instance furnished "the safest, just and fair basis" for assessing the price of the land at the relevant time; a conclusion upheld by the Letters Patent Bench of the High Court, on an Intra-Court Appeal. The main question before us is whether the High Court was right in relying upon a single instance of a sale which took place around the date of acquisition for assessing the' market value of the land?

5. The facts which form the background to the question are a follows: 141 acres 5 ghuntas of land, situated in Deh Safooran, Taluk and District, Karachi belonging to the appellants, was acquired b the Deputy Commissioner, East Karachi, for the construction of the Transmitting Station and Antenna lay out at Karachi Airport. The notification under section 4 of the Act was issued on 13-2-1969 while that under section 6 was issued on 9-7-1969. Notices under section of the Act were issued on 13-8-1969 and the appellants in them statements submitted in response to the aforesaid notices claimed compensation at the rate of Rs.10 per square yard. The Collector, however, by his award dated 24-9-1969, by taking the average rate of the sales made in the locality from 1962/1963 up to 1969, awarded Rs.5,500 per acre as compensation. This being not acceptable to the appellants, they requested for a reference to the Court, which was duly made to the High Court at Karachi !Reference No. 2 of 1970) and was disposed of by a learned Single Judge by his judgment dated 8-9-1976.

6. It may be mentioned that before the Collector the appellants had, in support of their claim, produced only one witness, namely, Ali Ahmad Tapedar. But did place on record copies of three judgments, namely, judgments in: (i) Civil Reference No. 3/1967 (Ex.5)--Deputy Commissioner v. Abbakar and others. (ii) Civil Reference No. 54/1968 (Ex.6)--Deputy Commissioner v. Abdul Waheed and others. (iii) Civil Reference No. 27/1969 (Ex.7)--Deputy Commissioner v. E. Dinsha and others. In addition, a copy of the award dated 20-3-1976 in an acquisition proceeding and an extract from the record were also produced. The learned Single Judge, during the reference proceedings, after considering the evidence of Ali Ahmad Tapedar and the other material on the record, modified the award of the Collector by holding that the claimants were entitled to the compensation at the rate of Rs.14,520 per acre.

7. The appellants were, however, still dissatisfied and they, therefore, filed an Intra-Court Appeal (High Court Appeal No. 31/ 1977). The learned Judges of the Division Bench hearing this appeal were not, however, persuaded to interfere with the assessment made by the learned Single Judge and, accordingly, dismissed the appeal. Hence this appeal before this Court, by its leave. It appears that in the High Court the appellants were relying upon certain instances of sale transactions and of the award in which rates of compensation were found to be much higher than the rates awarded by the High Court in this case. The learned Judges of the High Court in the Division Bench duly dismissed all these instances and found in their own words, that "None of the sales were either in the vicinity of the acquired land nor they were executed near about the relevant time when the notification under section 4 of the Act was issued." and went on to observe; "What we find is that some of the sales pertain to the years 1964 and 1968 and in respect of one of such lands, the lands was situated absolutely in different deh Thano. The market value of the acquired land at the relevant time, therefore, was determined on the basis of the sales which were in respect of the land either in the vicinity of- the acquired land and near about the relevant time when the lands in question were acquired. Coming to the present case, the learned judges observed: "The learned Single Judge very rightly, therefore, could not find any other direct evidence of sale of land which was made about the time when the lands in question were acquired except that of 15 Acres 2 Ghuntas bearing section Nos. 6, 196 and 229 situated in same deh Safooran and sold on 5-4-1969 at the rate of Rs.14,520 per Acre." and went on to add that the observations of the learned Single Judge in this respect, namely:-- "However, there is a direct evidence of sale of land which was mad6 about the time when the lands in question were acquired, measuring 15 Acres two Ghuntas land bearing survey Nos. 6, 196, 229 situated at the same deh and sold on 5-4-1969 for Rs.2,25,425 which gives a rate of Rs.14,520 per Acre. This sale was effected about 11 months after the date when the lands in question were acquired and this could, in my opinion form the safest, just and fair basis of fixation of the market value of the lands at the relevant time." were appropriate. The judgment of the Division Bench of the High Court shows that the learned Judges had after considering all the facts and circumstances of the case and the evidence produced on the record by the parties reached the conclusion that the compensation assessed by the learned Single Judge was quite appropriate and, therefore, it did not call for any interference.

8. It is true that neither the Collector nor the Judges in the High Court have discussed the question of potential of the land nor its peculiar advantages but they cannot be faulted on that account. We have perused the material on the record and we do not find that any evidence was led by the claimants to establish the "potential" of the acquired land or that it enjoyed any special feature or advantage. In these circumstances, the learned Judges in the High Court who could not speculate on these aspects, appear to have acted rather sympathetically in relying upon a transaction which took place after the issuance of the 'notification under section 4, namely, on 15-5-1969 (i.e. two months after the issuance of the notification under section 4 which was issued on 13-2-1969), as it related to a piece of land which was situated in the vicinity of the acquired land and appeared in all respects to be most comparable to it.

9. In these circumstances, we do not think that the failure of the Collector and the Judges in the High Court not to discuss the aspect of the "potential" of the land can vitiate their orders because the appellants had neither relied upon any evidence on this aspect of the matter nor indeed pointed out any such special advantage in the arguments raised before us. The only argument pressed before us by the learned counsel of the appellants was that the instances, which showed much higher rates, should have been preferred to the transaction which the learned Single Judge was pleased to rely upon and which was endorsed by the learned Judges of the Division Bench of the High Court on the other hand. We feel that the learned Judges in the High Court were justified in discarding these instances because they were not truly apposite in the facts and circumstances of the case and that the instance relied upon by them was the most relevant one and furnished a reliable guide for making the assessment. The upshot is that there is' no force in this appeal, which is hereby dismissed. The parties are, however, left to bear their own costs. S.Q./S-71/S Appeal dismissed.